Releases and Related Issues: Revisited

By Charles R. Gregg and Catherine Hansen-Stamp ©2012*

Introduction

Camp managers and camp families appear to understand the significance of an agreement in which the camp seeks protection from certain claims. These agreements are encountered regularly, across a broad spectrum of entertainment, instructional, and other activities.

The agreements (variously called “releases,” “waivers,” and “exculpatory agreements”) have become more important in recent years, for several reasons. Camp activities and environments are expanding beyond the traditional offerings. Campers (and staff) present new challenges with regard to medical, learning, and behavioral issues. And our society is, unhappily, more inclined to “take it to court” than to discuss or negotiate (or forgive!), when the bad event occurs. These and other circumstances have complicated the issue of the duty of care owed to a camper and his or her family and increased the importance of protection from claims.

In this article we revisit releases, addressed by us in previous ACA articles.1 Such an agreement, as discussed below, is a powerful tool for camp management when confronted by an angry or disappointed parent.

What Is a “Release?”

The focus of our discussion is the protection provided by an agree¬ment by Party A that a claim will not be made against Party B for a loss suffered in the future. A “release” is such an agreement. The party signing the release “gives up” the right to sue, for himself or herself, and on behalf of others in some circumstances. The operative words of such an agreement often are: “release, waive, and agree not to sue.” A waiver may be a slightly different animal — but the difference in effect is not significant. Your attorney will help you with the proper wording of the “release clause” to protect you in accordance with the laws of your state.
A release is more effective if it is a part of a larger document which lends support to the release itself, and adds to its enforceability — referred to here as a “participant agreement.”

The Participant Agreement

A larger participant agreement, which might include a “release,” (among other important provisions), can be a valuable tool in the information exchange flowing between an organization and its participants, both in providing important practical information to participants and in providing the organization potential protection from legal exposure. What is the nature of this agreement, or document, and what are its components?

Title

In the title, or perhaps a subtitle, you should inform the reader of the essential nature of the agreement. This will reduce the chances of a reader claiming that he or she had no idea of its significance, or a court finding that the title was inaccurate or misleading, thus rendering the agreement — or portions of it — unenforce¬able. Again, you will be guided in this matter by legal counsel, but consider stating at the outset, in the title or immediately thereafter in an introductory piece, that the document contains an acknowledgment and assumption of risks and a release (and possibly an indemnity against claims of others).

Parties

The parties to the agreement must be identified — for example, the camp and the parents of a camper, or visitor — and it must be clear, in states that allow it, that the parent is signing for himself or herself and on behalf of the minor camper or visitor.

Activities and Risks

It is important to show that the signing party understood the activities and their risks, and a good camp manager will include such a description in the agreement. The agreement might also refer to other documents or a Web site where such information is displayed. This is not simply a matter of strengthening your participant agreement — it is fair and good business to alert campers and their families or visitors to what the camp intends, and what the camp can and cannot do in taking care of the camper or visitor.

Most of the circumstances that can cause harm, including staff and other persons’ conduct, the environment (including terrain, weather, plants, and animals), and equipment are inherent in the camp experience. That is, risks and circumstances that are integral to the camp experience — without which the activity would not produce the pleasure, excitement, learning, or other outcomes desired by the camp and the participant. Other risks also exist. The agreement should include a description of the inherent and other risks (making clear that the list is not complete and that others, not listed, may exist), and the adult or parent should be asked to represent that he or she understands the risks (and has discussed those with a participating child), and nevertheless, agrees to participate (or allows the child to participate).

It is virtually impossible to list every activity and every risk which a camper or other visitor might encounter. In fact, courts are reluctant to grant a release of a claim arising out of an unforeseen event. That being said, using “including but not limited to” language and thoughtfully considering the activities and risks that are described in the agreement is a worthwhile approach. The issue is usually resolved by the court determining whether the loss suffered was within the reasonable (not necessarily actual) contemplation of the parties when the agreement was entered into. Other courts will enforce a release of “any and all claims, known or unknown, and whether or not described in this document.” You must confer with your local counsel to learn what your state law requires and what protection is available to you.

A camp should consider specifically addressing activities that might not reasonably be anticipated by the family or participant — trips off the campus and unique activities or equipment (for example, a zip line or climbing tower) posing risks that might not be understood. Some camps make a point of explaining that independent contractors, not camp employees, may be used for certain services.

Acknowledgment and Assumption of the Risks

The person signing the document is next asked to assume and accept, for themselves and for a minor participant, the inherent and other risks.

Release of Claims

Next, the signing person, for himself or herself and, if state law permits, on behalf of the child (your legal counsel will advise you in this) releases the camp and associated persons and entities from future claims.

The released persons and parties should include those whose interests you wish to protect from a claim. The laws of all but a few states (Louisiana, Virginia, and Montana) allow the release of claims of negligence — that is, the failure of the camp or other released person to act as a reasonable, similarly situated person (manager, wrangler, life guard, counselor, etc.) would have acted under the circumstances. More serious misconduct, including gross negligence, reckless or intentionally wrongful acts, and violations of the law generally cannot be released. Most courts require that the parties are clear in their intent to include negligence in the released acts and a few states require that the intent to include negligence be specifically stated.
Courts are protective of a person’s right to enter into a contract, as they choose, for whatever reason.

However, agreements containing releases are generally disfavored by the courts, for they violate a basic premise of the law — that a person harmed by another will be compensated. As a result, these agreements must be carefully drawn and strictly comply with state law.

State laws uniformly require that a release (including the larger participant agreement of which it is a part) must comply with the ordinary requirements of any contract: consideration (that is, a party receives something of benefit for the promise he or she makes), a meeting of the minds regarding the provisions, the legal and mental competency of the persons signing, and conformity to state law and policy.

In addition, because a release is “exculpatory” — that is, intending to eliminate liability already allocated under the law — agreements containing releases will be strictly construed against the party drafting the agreement, and generally, only enforced if they are clear, fairly and voluntarily entered into, and do not violate public policy. Consistent with these criteria, many states require that the specific release language be conspicuous — that is, stand out so that the release will be effectively brought to the attention of the person signing. This requirement can be met by bolding, enlarged font size, paragraph headings, and generous spacing to allow for easy reading.

Releases work if they are properly drawn and presented for signing in a non-coercive manner. As stated above, almost all states allow releases of claims of negligence, and of the states whose higher courts have ruled on the matter, less than a dozen do allow parents to surrender a child’s right to sue for an injury. Even those states that do not allow a parent to sign for a child generally do allow the parent to release his or her right to recover for their own loss because of the injury to the child.

Indemnity

Careful camps will include an agreement of indemnity; that is, the signing party will protect, defend, and pay the released parties with regard to certain claims — for example, claims of other family members who may suffer a loss if the camper or visitor is hurt, or persons who may be hurt by the camper or visitor.

Other Provisions

The agreement may conclude with certain customary and fairly standard provisions, including: an identification of the state law which will be applied to a dispute and the place where a matter must be tried; a provision that the agreement (if state law permits) is binding on the family members and other heirs and the estate of the signing party; a provision that if a part of the agreement is deemed unenforceable by a court, the remainder will nevertheless remain in full force and effect; or other provisions.

Signatures

The document should be signed by the adult camper or visitor or the parents (preferably both) or guardian of a minor. Some camps ask minor campers or other visitors of a certain age (perhaps fourteen years or older) to sign to reflect their understanding of the activities and risks. See our discussion on this in the “Other Considerations” section of this article.

Much of what we have described above appears to be designed to protect the camp, and that certainly is an important feature of these agreements. However, you will note that throughout the agreement, signing parties are given important information about the camp, including its activities and risks, so that they can make informed decisions about whether to attend and with what expectations. Providing this information at the outset will reduce surprises and disappointments — and complaints.

How a Participant Agreement Might Be Used

The camp should consider having participant agreements signed by all adult campers and visitors and by parents for themselves and on behalf of their minor child (in all but a few states, those under eighteen years of age). Visitors asked to sign might include members of third party user groups. If the visitor’s exposure to risk is slight, or if collecting a participant agreement in a particular situation “doesn’t feel like our camp” (a wedding, perhaps, or other short-term ceremony or event), you can choose not to use an agreement, but understand that accidents can occur even in those situations. Visitors to the camp who are making deliveries or wish to merely inspect or observe the grounds or camp activities would not ordinarily be expected to sign an agreement. On the same token, you should determine whether your liability insurance coverage adequately protects the camp from claims that might arise from these situations.

Camps often overlook the importance of collecting participant agreements from staff who either do not qualify for workers’ compensation coverage (volunteers, for example) or who might suffer an injury that does not qualify for such coverage. These matters should be discussed with local counsel familiar with employment law and the camp’s hiring practices and insurance coverage.

A visiting group — a college club for example — may agree to indemnify a camp against claims of its members, and the camp may feel that the indemnity provides enough protection to make the collection of participant agreements from the individual club members unnecessary. The importance of participant agreements in these situations should be considered on a case-by-case basis.

Other Considerations

Is This Fair?

Some families, and perhaps some camp directors, might feel it is unfair to seek to be released from responsibility for carelessly harming a camper. Asking a family to release you from your duty of care is a serious matter, involving ethical and practical management issues. It should be carefully considered with your legal counsel and perhaps discussed with a representative sampling of your camp families.

When a camp presents a family with an agreement containing a release, it is saying “we want you to agree, now, that you will not sue us if our carelessness hurts, or even kills, your child.” If the parent asks you to justify this release, what do you say? You can be direct and honest, and explain the value of the participant agreement as an exchange of information about activities, risks, and camp family responsibilities. You might say further that you wish to deter frivolous suits, which occur too frequently in our litigious society. You might also advise that there is not a bright line between injuries resulting from inherent risks (with respect to which, generally, you owe no duty of protection) and those resulting from a camp’s fault or negligence. You, the camp, wish to reserve to yourself the judgment as to the cause of the injury, and if and how to compensate the injured party — because you understand camps and camp activities better than a judge or jury being asked to decide the outcome of a lawsuit. Basically, you will be asking the parent to trust you to use the agreement as you see fit. Although these inquiries are rare, the camp should be prepared for them.

Why a Release? Can’t We Use Just an Acknowledgment and Assumption of Risks?

Yes, a camp can utilize an agreement that contains no release of its liability for negligence, but includes a well-crafted acknowl¬edgment and assumption of inherent risks, for example.2 Such a document provides evidence of the participant’s knowing and voluntary assumption of risks. This evidence can provide the basis for an assignment of fault against the participant, under a state’s comparative fault or comparative negligence laws, thus decreasing or eliminating a participant’s claim against the camp. In addition, it could buttress a defense that plaintiff’s claims should be dismissed under the inherent risk doctrine (the general legal concept that a provider has no duty to protect individuals from the inherent risks of a sport or recreational opportunity — and has no liability for harm resulting from those risks). However, as discussed above, there is not a bright line between injuries determined to result from inherent risks (generally no duty), and those resulting from negligence (breach of a recognized duty). Including a release of liability for the camp’s negligence in your agreement eliminates this murky line and gives the camp more control in determining how to utilize the agreement.

Should the Minor Camper Sign?

Although minors are not competent to contract,3 there can be some real value in having the minor — particularly older minors — sign a participant agreement. The minor, for example, could agree to that portion of the form that describes activities and risks and contains an acknowledgment and assumption of those risks. The document can assist the child in understanding the nature of the activities and risks he or she may confront, making him or her more informed and better prepared for the activities. Although not a binding contract, the document can serve as evidence of the child’s acknowledgment and assumption of risks — inherent or otherwise — thus potentially affecting the legal outcome of a case. As discussed above, sometimes depending upon the child’s age, minors (as well as adults) are capable of assuming risks or otherwise engaging in conduct that can amount to “contributory fault” — ultimately decreasing any recovery obtained against an organization in a lawsuit. In addition, minors are subject to your state’s version of the inherent risk “no duty” doctrine, if any. Choices about whether or not to have a minor sign one of these agreements and how that will be accomplished are important matters to discuss with your legal counsel.

Cut and Paste

Avoid the temptation to cut and paste from another camp’s form. Each organization has its own unique operation and mission and factors that may be important to include or emphasize in the participant agreement. Importantly, there are many words used in connection with these agreements that have distinct legal meanings, which may vary from community to community and state to state. We have seen cut and paste efforts that result in provisions that contradict each other or that confuse or misuse words with distinct legal meanings.

Form Implementation and Consistency of Information

Educate your staff about the value, proper use, and implementation of the participant agreement you choose. For example, don’t let participants or parents cross out words or provisions before they sign. This practice can have significant legal ramifications — potentially compromising the value of the altered agreement as well as agreements entered into with the organization’s other participants/parents.

Your staff comments, Web site, and other information distributed or available to campers, families, and the general public should be consistent with each other and with the language included in your participant agreement. Caution staff about comments such as “these agreements aren’t worth anything, but our [board, insurance company] requires they be signed.” A Web site that says “don’t worry, your child is always safe with us” also can impact or threaten the ultimate enforceability of the participant agreement in subsequent litigation. Importantly, guarantees of safety or absolute assurances of any kind can have other negative legal ramifications.

Varying State Laws and Federal Restrictions

As discussed above, a few states do not enforce releases at all. In other states, certain laws can affect the enforceability of a release in certain circumstances. For example, some courts have ruled that the language of a state’s “inherent risk” law effectively prohibits those providers from obtaining a written release of their liability for negligence. A state’s inherent risk law may also require that certain language be included in any agreement used with participants (for example, many of the “equine” laws). In addition, the National Park Service and some regions of the US Forest Service restrict the use of releases for those who operate under permit or license on those lands (instead requiring some variation of what has been termed a “Visitor’s Acknowledgment of Risk” form). Legal counsel should review applicable state and federal law in developing an appropriate participant agreement for your organization.

E-Sign Issues

More and more camps and other organizations are using the Internet for program registration or other purposes and transition¬ing previously paper documents — including the participant agreement — to an electronic form that requires an electronic signature. Often, this is done with the assistance of a third party service provider who is helping the organization manage their registration and, potentially, their database. Transitioning to online forms can be an efficient and “greener” way to manage your registration and other operations.

However, exercise caution with online documents — particularly those, like a participant agreement, that are intended to be binding contracts. Specific electronic signature laws govern the validity of online signatures and of the online process, as we discussed in the Fall 2010 CampLine article, “Are You Ready for the E-Sign Revolution?” Although an electronic signature is acceptable under the law, a variety of important steps must be addressed to assure the validity and integrity of the electronic (contract) record and the accompanying online process, so that the record can be effectively created, stored, retrieved, and introduced and used as evidence in court. Having a minor sign the electronic record with their parents raises additional issues.
Frequently, a third party provider (or internal consultant) is not familiar with e-sign legal issues, and you are well served to have your legal counsel work with these providers to get it right. Your legal counsel and even another adult representative of your camp families can ultimately act as “dummy” parents to review the online signature process to address any issues before it goes live.

Agreement Content

Carefully consider with your legal counsel the provisions (in addition to those discussed above) to include within the participant agreement. It is worth your time to think through (being consistent with your camp’s unique operation) the purpose for which the agreement is to be used and applicable law.

The Big Picture

Remember, the use of a written participant agreement is not an overall panacea. A camp that takes the position “I just need a release of liability, and then I am set” is not considering the bigger picture. Endeavoring to run a professional and quality program and engaging in responsible risk management practices are arguably the most important ways to manage and minimize the risk of loss to both your participants and to your operation. Developing a solid participant agreement for use with your camper families, visitors, and potentially your staff (volunteer or otherwise) is just one aspect of effective risk management practices.

Give careful thought to how your camp will use participant agreements in its operations. Importantly, consider the variety of activities going on in the camp environment and what the agreement is intended to cover. It is worth your time to understand the big picture and develop participant agreements that fit your camp’s needs and, importantly, comply with the law.

*This article contains general information only and is not intended to provide specific legal advice. Camps and related organizations should consult with a licensed attorney regarding application of rel¬evant state and federal law as well as considerations regarding their specific business or operation.

Charles R. (Reb) Gregg is a practicing attorney in Houston, Texas, specializing in outdoor recreation matters and general litigation. He can be reached at 713-982-8415 or e-mail rgregg@gregglaw.net; www.rebgregg.com.

Catherine Hansen-Stamp is a practicing attorney in Golden, Colorado. She consults with and advises recreation and adventure program providers on legal liability and risk management issues. Hansen-Stamp can be reached at 303-232-7049, or e-mail reclaw@hansenstampattorney.com; www.hansenstampattorney.com.

Notes

  1. “Releases Revisited,” CampLine, Spring 2007; “The What and Why of Camp Releases,” Camping Magazine, January/February 2007; both articles by Charles R. Gregg and Catherine Hansen-Stamp.(
  2. Alternatively, a written assumption of risks can include an express “assumption” of the risk of an organization’s negligence, and if enforced by a court, provide the organization with protection essentially equiva¬lent to a release for negligence.) An acknowledgment and assumption of risks is the type of document required in newly drafted ACA manda¬tory standard PD.30.2, for camps that allow adult campers/staff the choice of whether or not to wear a helmet for horseback riding activities. Certainly, the “acknowledgment” referenced in that standard could be included within the scope of a larger participant agreement, depending upon the circumstances and applicable law.
  3. A minor is not capable of releasing his or her own rights to sue for negligence in a pre-injury release because, with some exceptions, he or she is not competent to enter into contracts. If a minor does agree to a release, the contract is considered voidable — that is, the minor can disaffirm (reject) or ratify (affirm) the contract by their words or conduct within a reasonable time after they reach adult age. Commonly, the minor disaffirms an agreement containing a release by filing suit. As a result, it is often customary to ask a parent to agree to release a minor’s claims on the minor’s behalf.
     
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